Paper of the Day: Litigation Isolationism
Posted on January 19, 2015
The paper of the day is Litigation Isolationism, by Pamela K. Bookman of Columbia Law School. The paper is forthcoming in the Stanford Law Review.
Pam’s paper focuses on the increasing openness of US courts to arguments that they should not entertain transnational civil actions. The doctrines US courts use to avoid such cases are familiar: personal jurisdiction, forum non conveniens, abstention, and the presumption against extraterritorial application of US statutes. The last of these is particularly salient for me this week, as I am about to file a motion to dismiss that argues, in light of Morrison v. National Australia Bank, that a US statute that expressly proscribes certain conduct in interstate or foreign commerce nevertheless has no extraterritorial application. Pam usefully puts these US doctrines in the context of the increased willingness of foreign courts to give plaintiffs the procedural advantages (e.g., pretrial discovery, class actions) that underlie Lord Denning’s quip—okay, maybe this is a little bit anachronistic—that litigants are drawn to the courts of the United States like moths to flame. At the same time that US courts are pulling back, foreign courts are opening their doors to important transnational litigation.
According to Pam, the express purposes of the US courts’ avoidance doctrines are preservation of the separation of powers and international comity. Her claim is that the courts are serving neither purpose. Avoidance does not serve the purpose of protecting the executive’s authority over foreign relations, because the root of the problem is not that the courts are entertaining too many transnational suits, but that the judiciary, not the executive, gets to decide which suits will be entertained and which will not. Pam points to Morrison as an example: there, the executive was urging the judiciary to hear a transnational securities fraud claim. Yet I suppose no one or almost no one would want to say that the executive should have control over the gates to the courthouse. What about Congress, I hear you say? The definition of the courts’ jurisdiction is for Congress, and perhaps the involvement of Congress can help square the circle. Pam acknowledges this, though she notes that efforts at statutory reform in this area has “foundered for decades.”
Nor does avoidance of transnational cases serve the interests of comity in every case. Sometimes foreign sovereigns are offended when US courts hear transnational cases, but according to Pam, they may also be offended by a US court’s refusal to hear a case. Consider a transnational case by foreign plaintiffs against a US multinational that gets dismissed on forum non conveniens grounds.
Pam gives several reasons why avoidance may not serve American interests. A good example: the US is giving up the opportunity, in cases with conflict of laws problems, to decide which law applies to a dispute or to apply its own law to important disputes. To me, maybe the central reason to think avoidance is problematic is this:
[B]y pursuing litigation isolationism, U.S. courts are unilaterally deciding to limit the U.S. role in the emerging market for transnational litigation, a market in which the United States began as a principal player …
It seems to me that welcoming important transnational disputes in our courts is one of the key ways we project “soft power.” It seems to me to be in the national interest to have important disputes decided in our courts. Of course, there are outer limits both under US law and under international law to the jurisdiction our courts can permissibly excercise. But Pam’s point, I think, is that overly expansive exercise of jurisdiction is not the problem we face today.